Jacobellis v. Ohio

In a 6-3 decision, the Supreme Court decided that Jacobellis had been wrongly convicted. By no stretch of the imagination could The Lovers be called obscene. Yet Jacobellis displayed the wide diversity of opinion about what constitutes obscenity and who should judge.

Justice Brennan announced the judgment of the Court and was joined in his opinion by Justice Goldberg. Brennan reiterated that obscenity is not covered by the First Amendment's protection of free speech. Therefore, it was legal to pass laws against obscenity and to prosecute people for distributing it. The problem came in determining just what counted as obscene material.

Some people, wrote Brennan, wanted obscenity to be treated "as a purely factual judgment" that could be decided by a jury or at least by state and the lower federal courts. In this view, the Supreme Court's role in obscenity cases would be limited only to judging whether sufficient evidence supported the lower court's ruling--in other words, asking only whether the lower court proceeded in a constitutional manner, without regard to its actual judgment.

"The suggestion is appealing," continued Brennan, "since it would lift from our shoulders a difficult, recurring, and unpleasant task"--having continually to review materials and decide whether they were obscene. Unfortunately, Brennan wrote, the Court had to be involved in specific decisions. Otherwise, it was far too likely that work deserving of First Amendment protections would be ruled obscene and lose its constitutional safeguard.

Brennan referred to a 1957 decision, Roth v. United States, as the most recent working definition of obscenity available:

. . . obscenity is excluded from constitutional protection only because it is "utterly without redeeming social importance," and . . . "the portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press."

The Court would not, moreover, "weigh" the social importance of a work against its obscene qualities. If a work had any "social importance" whatsoever, it deserved constitutional protection.

Brennan went on to write that the Roth standard required material to be considered obscene only if it went "substantially beyond customary limits of candor in description or representation of such matters."

Finally, Brennan examined the Roth decision's idea that obscenity be judged by "contemporary community standards." He stressed that "community" in this context meant "society at large . . . the public, or people in general." Otherwise, wrote Brennan, a work might be considered obscene in one community while being permitted in another. This would make it virtually impossible for publishers and film distributors to know how to distribute work nationally. The probable effect would be to "restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly."